Prosecutor doubts over Guantanamo trials

17 September 2004 — 10:00am

The chief Pentagon prosecutor in the military trials of alleged al-Qaeda fighters at Guantanamo Bay has asked that the case's presiding officer "closely evaluate" his impartiality and consider resigning, a document filed in the tribunal proceeding said.

The prosecutor, Army Colonel Robert Swann, suggested in the document, filed last week, that in effect he accepted some arguments put forward last month by military defence attorneys that the presiding officer in the four cases, Colonel Peter Brownback, should consider stepping down.

In hearings last month at the US Navy base at Guantanamo Bay, defence lawyers argued that Colonel Brownback should quit because he is close friends with retired US Army Major-General John Altenburg, who as the tribunals' "appointing authority" oversees the military trials.

Defence lawyers pointed out that Colonel Brownback and General Altenburg have known each other since 1977, that the colonel's wife worked for General Altenburg, and that the general hosted the colonel's retirement party in 1999. At preliminary hearings for detainees last month, the lawyers asserted that the proceedings were stacked against the defendants and suggested that four others on the panel deciding their guilt or innocence were also unqualified to serve. The defence attorneys' legal strategy, in part, is to get the prosecutions moved to US criminal courts.

Colonel Swann's filing shows that the prosecutors are joining the defence lawyers in expressing unease about how the cases are proceeding, experts in military law said on Wednesday. "This is quite a remarkable development," said Eugene Fidell, president of the non-profit National Institute of Military Justice.

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"It shows that both counsel tables, prosecution and defence, are not comfortable with the way things are unfolding . . . The prosecution evidently feels there's a danger that public confidence in the administration of justice could be damaged."

Colonel Swann's filing asks that Colonel Brownback "closely evaluate his own suitability to serve as the presiding officer . . . with particular attention focused on whether his impartiality might reasonably be questioned". The prosecutor also asked Colonel Brownback to tell General Altenburg "whether good cause exists for (Colonel Brownback's) removal". Colonel Swann wrote that he "does not object to the defence challenges for good cause" of three other military officers who are members of the commission.

During last month's hearings, defence lawyers had asked that four panellists be disqualified. One served in intelligence operations in the Middle East, another sent detainees from Afghanistan to Guantanamo Bay, a third commanded a marine who died in the World Trade Centre attack and a fourth could not say with certainty what the Geneva Convention was.

Navy Lieutenant-Commander Charles Swift, who represents Yemeni detainee Salim Ahmed Hamdan, an alleged chauffeur for Osama bin Laden, said that "from the beginning, the (Pentagon) prosecutors have said, wait till we get there (to the tribunals) and you'll see how fair it all is. . . . In retrospect, they've realised it wasn't fair."

At last month's hearings prosecutors said they had no objections to Colonel Brownback remaining. Commander Swift said the arrangement was "incestuous" as Colonel Swann's supervisor is retired Air Force Brigadier-General Thomas Hemingway, who is also counsel to General Altenburg's office. Washington Post